NO. 07-00-0271-CR

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL D

	APRIL __9            , 2001

	______________________________

	RAY JIMENEZ CHACON,

			Appellant

	v.

	THE STATE OF TEXAS, 

			Appellee

	_________________________________

	FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;

	NO. 12,817-C; HON. PATRICK PIRTLE, PRESIDING

	_______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.

	Ray Jimenez Chacon appeals his conviction for burglary of a habitation.  Appellant

entered an open plea of guilty and elected for the court to set punishment.  The

punishment assessed was 20 years imprisonment accompanied by no fine.  Now,

appellant contends, through one issue, that his plea was unknowing and involuntary

because the trial court’s admonishment regarding the range of punishment was incorrect. 

We overrule the issue and affirm.

	Both the appellant and the State agree that the admonishment provided to appellant

was incorrect.  That is, the trial court informed him that he could be assessed from five to

ninety-nine years imprisonment.  However, the actual range was two to twenty years.  The

trial court ultimately levied a sentence of 20 years, a term within both the actual range and

that encompassed by the admonishment.

	Next, while the utter failure to admonish appellant of the applicable range of

punishment may require reversal, Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985), the same is not true where an inaccurate admonishment is given and the sentence falls within the correct range.  Id.; Davis v. State, 7 S.W.3d 695, 697 (Tex. App.–Houston [1st Dist.] 1999, no pet.).  In the latter situation, it has been held that the  admonishment substantially complies with the dictates of Texas Code of Criminal

Procedure art. 26.13.1  Id.  And, under those circumstances, the burden shifts to the appellant to affirmatively show by evidence of record that he was not aware of the consequences of his pleas and that he was misled or harmed by the inaccurate

admonishment.  Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon1989); Grays v. State, 876 S.W.2d 878 (Tex. App.–Dallas 1994, no pet.).  

	Here, while the admonishment was incorrect, the trial court nevertheless

admonished appellant about the range of punishment.  Furthermore, the sentence

ultimately levied (i.e. 20 years imprisonment) came within both the actual range of punishment and the range mentioned by the trial court.  Thus, the admonishment substantially complied with art. 26.13 of the Code of Criminal Procedure.2  Given this, appellant must show that he was unaware of the consequences of his plea and misled or harmed to secure reversal.  Yet, he cites us to no evidence of record establishing either

requirement.  Nor does our independent review of the record reveal such evidence. 

Indeed, nothing before us illustrates that appellant was actually unaware of the true range

of punishment.  See Grays v. State, 888 S.W.2d at 878 (stating that “[e]ven given an incorrect admonishment, a defendant may otherwise know or understand the correct range

. . . before the court accepts the plea”).  Nor does the record suggest that he was unaware

of the fact that 1) he could have been sentenced to twenty years and 2) he was

nonetheless waiving his rights to trial, to confront witnesses, and the like irrespective of

the court’s admonishment.  

	More importantly, because his plea of guilty was open (i.e. without any recommendation from the state), we cannot say, given the record before us, that the

misinformation somehow prevented the appellant from pursuing favorable options or

otherwise harmed him.  As acknowledged by the Court of Criminal Appeals, an open plea

effectively vitiates any question regarding appellant’s ability to evaluate a plea bargain.  Ex parte Gibauitch, 688 S.W.2d at 872.  Simply put, one cannot reasonably suggest that inaccurate information concerning the potential punishment he faced impeded his ability

to evaluate a plea bargain when there existed no plea bargain.  Id.  “Appellant faced the same prospects for punishment regardless of whether he chose to plead guilty or go to

trial”.  Grays v. State, 888 S.W.2d at 876.  

	So too does it strain logic to infer that appellant would have pled not guilty had he

been properly admonished.  Having chosen to throw himself into a lion’s den when he

thought he faced the teeth of ten lions hardly suggests that he would have done otherwise

had he known that only one lion roamed the grounds.   

	In sum, we hold that the admonishment substantially complied with art. 26.13 of the

Texas Code of Criminal Procedure.  We also hold that the record contains no evidence

establishing that appellant failed to know or understand the consequences of his plea or

that he was misled or harmed by the admonishment.  Accordingly, the judgment is

affirmed.

							Brian Quinn

							    Justice

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